Good humour, bad taste: Can an inappropriate "joke" lead to an employee's dismissal?

04 Feb 2016

Good humour, bad taste: Can an inappropriate "joke" lead to an employee's dismissal?

by Michael Byrnes, Jacqui Ellis

An inappropriate joke severed the foundation of trust and confidence in the employment relationship.

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A recent decision of the Fair Work Commission has shed light on the use of offensive language in the workplace, and whether the use of such language can form a valid basis for an employee's dismissal.

Offensive language in the workplace

Whether or not language is deemed offensive in the workplace will usually depend upon the context in which the language is used and the sensitivity of the listener. That being said, there are groups of words or phrases that will almost always be deemed offensive (and not necessarily of the four-letter variety), such as the use of slang or derogatory terms or words used to discriminate against an individual on the grounds of sex, race, disability, sexual orientation, age or religion.

Almost no one wants a solemn, sterile workplace devoid of any humorous rapport or repartee, but it is the responsibility of the employer to ensure that its employees are not exposed to language that may be deemed offensive or inappropriate in the workplace. This is a challenge for employers. The identification of what is offensive is not always a straightforward task, and can be difficult for employers to regulate.

For example, problems can arise where language is said in jest, or where the individual using the language does not realise or understand the potential offence that could be caused from the particular words being used. This issue can be further complicated by the industry in which the employee works, where the use of banter may be considered a common and accepted part of the working environment. However, employers cannot necessarily rely on offensive banter being commonplace to preclude claims being commenced by an employee.

What if the offensive language is not directed at a particular individual?

Complaints can also arise where an employee has observed the use of offensive language which, although not specifically directed at that individual personally, may still be deemed offensive.

This issue was recently examined in the case of Claus-Dieter Hengst v Town and Country Community Options Inc [2016] FWC 194, in which the Fair Work Commission upheld the dismissal of an employee who made what he apparently thought was a "joke" referencing rape during a safety investigation.

The joke and the reaction

Mr Claus-Dieter Hengst was a Disability Support Worker and Workplace Health and Safety Advisor for Town & Country Community Options (TCCO).

TCCO is a not-for-profit organisation that provides services to urban and rural communities for people with disabilities such as Down syndrome, cerebral palsy and intellectual disabilities.

On 22 September 2015, Mr Hengst interviewed a co-worker, Mr Mears, in relation to a work health and safety issue. During the course of this interview, Mr Hengst and Mr Mears discussed an incident that had occurred earlier that morning, whereby a kangaroo had collided with Mr Mears' vehicle. Mr Hengst asked Mr Mears if he required any counselling as a result of the incident. Mr Mears responded in the negative, adding in a jovial tone:

"I wasn't overly concerned for the kangaroo. It's not like I knew him personally".

Mr Hengst, taking Mr Mears' comment as an invitation to engage in banter, responded with the following comment:

"So you're ok then? You're not going to lose the plot and go home and rape your daughter or anything like that?"

Mr Hengst's comment was overheard by a female co-worker, Ms Fazakerley, who was seated two metres away. Ms Fazakerley was shocked and appalled by the comment.

On 23 September 2015, Ms Fazakerley confronted Mr Hengst regarding his comment. Mr Hengst responded that "it would not happen again", although he did not provide a formal apology. Ms Fazakerley later spoke with TCCO's Chief Executive Officer and reported the incident. This was the third complaint made against Mr Hengst by Ms Fazakerley, who had previously lodged complaints regarding an apron worn by Mr Hengst to a work Christmas party which depicted a woman's breasts and a "Hurt Feelings Report" prepared by Mr Hengst which mocked the perceived sensitivities of office employees.

On 25 September 2015, following a telephone call between the CEO and Mr Hengst, Mr Hengst was invited to attend a show cause meeting, along with a support person. During the course of this meeting, Mr Hengst explained that his comment was intended to be "light-hearted" but was in hindsight "totally out of order". Later that same day, Mr Hengst was terminated by TCCO.

In the termination letter provided to Mr Hengst, TCCO explained that it considered Mr Hengst's comments to be "completely inappropriate" and without justification or excuse, particularly with respect to the following factors:

Mr Hengst was a WHS Advisor whose role involved providing support to vulnerable people with a disability, some of whom had been sexually abused as children and adults;

he made the comment while he was knowingly in close proximity to a female work colleague; and

his comments breached a number of TCCO policies, including the TCCO Code of Behaviour and Duty of Care Policy.

Mr Hengst lodged an unfair dismissal claim with the Fair Work Commission.

The joke as the basis for termination

Before the Fair Work Commission, Mr Hengst sought to argue that he "made an inadvertent slip of the tongue", which was intended to be humorous, and that he was not aware Ms Fazakerley was within earshot.

However, it was found by Senior Deputy President Peter Richards that Mr Hengst had intentionally engaged in jocular banter with Mr Mears, knowing that it would embarrass and upset Ms Fazakerley, who had previously expressed her sensitivities regarding his behaviour.

SDP Richards also concluded that Mr Hengst was not genuinely remorseful for his actions, as he had provided two contradictory explanations for his conduct. One explanation was that he had deliberately sought to engage in humorous banter, while the other explanation was that the comment was "accidental" and that Mr Hengst was a "victim of circumstances". These two explanations could not be reconciled and, as found by SDP Richards, indicated that Mr Hengst had not fully grasped the significance of his conduct.

The Fair Work Commission dismissed Mr Hengst's application, finding that TCCO had valid reasons for terminating Mr Hengst's employment. SDP Richards concluded that Mr Hengst's conduct had severed the foundation of trust and confidence in the employment relationship, and that TCCO:

"could not confidently rely on Mr Hengst's judgment in future circumstances in relation to the nature of his exchanges with his work colleagues or those vulnerable persons who utilise the organisation's services, and how and in what manner and tone Mr Hengst might represent the organisation and its values publicly".

So how should an employer deal with offensive language in the workplace?

This is a challenging area for employers. While employers can't be expected to create a zone where there is never any prospect of offence, they are responsible for providing a safe and appropriate working environment for their employees, and this includes taking active steps to minimise the risk of genuinely offensive language being used in the workplace.

When dealing with offensive language in the workplace, employers should:

implement appropriate policies and procedures to deal with employee conduct in the workplace, including accepted codes of behaviour;

ensure that senior staff and management are trained to deal with issues concerning the use of offensive language in the workplace by ensuring they are understand the relevant policies and procedures, particularly any procedures dealing with complaints and grievances;

implement structured equality and diversity training for all employees; and

ensure appropriate investigation procedures are in place to address and investigate complaints thoroughly and fairly.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.